In this blog, we often discuss litigation concerning defective drugs and medical devices. The legal theory that underlies most of these cases is known as product liability.
Put simply, product liability allows an injured person to recover compensation after they have been injured by a defective product. They can pursue this compensation by identifying the parties that put the defective product into the marketplace and holding them liable for their damages.
Product liability law breaks down this idea into three types of defects: design defects, manufacturing defects and marketing defects. This last category can be a little confusing, so we’ll explore it in this blog post.
What is a marketing defect?
It’s relatively easy to understand the first two categories. If a product has a design defect, the defect goes all the way back to the design of the product. If a design has a manufacturing defect, then perhaps the design is sound but something went wrong in the manufacturing process.
Marketing defects are a little harder to understand. In these cases, the product is not safe for the use for which it was marketed. Generally defect lies in the marketing materials, instructions, warnings or other documentation.
For example, say a pharmaceutical company sells a new drug that is intended to treat nausea. In its marketing materials, the company fails to inform consumers that the drug carries a risk of significant side effects. Some consumers take the drug and are injured.
In this example, the drug was, arguably, designed effectively and there were no defects in its manufacturing. However, the marketing of the drug was defective. The injured parties may hold the pharmaceutical company liable for their damages.
Litigation involving marketing defects in medicine has become more common in recent years. One reason for this is that pharmaceutical companies market directly to consumers in ways that were not common in the past.
When consumers are harmed by the medicines they hope will heal them, they should learn more about how the law can protect them.